the eu audiovisual media services directive and its ... · and its transposition into national law...

Synopsis consolidated AVMSD 2010 with

Commission proposal AVMSD May 2016

Important Notice

This text is an unofficial synopsis conducted at the University of Luxembourg in the framework of the research project on the transposition of the “Audiovisual Media Services Directive” in the Member States of the European Union. The AVMSD project was initiated by Prof. Dr. Mark D. Cole and Jenny Metzdorf.

For more information on the research project, see www.medialaw.lu. On this website, the original and translated versions of the national legal acts are also made available, together with synopses illustrating differences to the AVMSD 2010. The project has been extended to a cooperation with the European Audiovisual Observatory (EAO) which now hosts a more extensively searchable version of the database at http://avmsd.obs.coe.int/.

This document contains a synopsis in the form of a table displaying the AVMSD in its

consolidated version of 2010 aside the proposal of a revised Directive published 25

May 2016. It merely serves to illustrate differences and similarities in wording. It

cannot be guaranteed that the comparisons are absolutely correct. The synopsis

therefore remains an unofficial version with no legal value.

The EU Audiovisual Media Services Directive

and its transposition into national law – a comparative study of the 28 Member States

www.medialaw.lu

http://www.medialaw.lu/

http://avmsd.obs.coe.int/

http://www.medialaw.lu/

Project AVMS-Directive www.medialaw.lu AVMSD 2010 – AVMSD proposal - 2 - University of Luxembourg

CHAPTER I

DEFINITIONS

Art. 1 AVMSD

Art. 1 COM proposal

1. For the purposes of this Directive, the

following definitions shall apply:

(a) ‘audiovisual media service’ means:

(i) a service as defined by Articles 56

and 57 of the Treaty on the

Functioning of the European Union

which is under the editorial

responsibility of a media service

provider and the principal purpose of

which is the provision of programmes,

in order to inform, entertain or

educate, to the general public by

electronic communications networks

within the meaning of point (a) of

Article 2 of Directive 2002/21/EC.

Such an audiovisual media service is

either a television broadcast as

defined in point (e) of this paragraph

or an on-demand audiovisual media

service as defined in point (g) of this

paragraph;

(i) a service as defined by Articles 56

and 57 of the Treaty on the

Functioning of the European Union

which is under the editorial


provider and the principal purpose of

which is the provision of programmes,

where the principal purpose of the

service or a dissociable section

thereof is devoted to providing

programmes, under the editorial


provider, in order to inform, entertain

or educate, to the general public by




Such an audiovisual media service is

either a television broadcast as

defined in point (e) of this paragraph

or an on-demand audiovisual media

service as defined in point (g) of this

paragraph;

(ii) audiovisual commercial

communication;


(aa) “video-sharing platform service” means

a service, as defined by Articles 56 and 57 of

the Treaty on the Functioning of the

European Union, which meets all of the

following requirements:

(i) the service consists of the storage of

a large amount of programmes or

user-generated videos, for which the

video-sharing platform provider does

not have editorial responsibility;

(ii) the organisation of the stored content

is determined by the provider of the

service including by automatic means

or algorithms, in particular by hosting,

displaying, tagging and sequencing;

(iii) the principal purpose of the service or

a dissociable section thereof is

devoted to providing programmes

and user-generated videos to the

general public, in order to inform,

entertain or educate;

(iv) the service is made available by




(b) ‘programme’ means a set of moving

images with or without sound constituting an

individual item within a schedule or a

catalogue established by a media service

provider and the form and content of which

are comparable to the form and content of

television broadcasting. Examples of

programmes include feature-length films,

sports events, situation comedies,

documentaries, children’s programmes and

original drama;

(b) ‘programme’ means a set of moving

images with or without sound constituting an

individual item within a schedule or a

catalogue established by a media service

provider and the form and content of which

are comparable to the form and content of

television broadcasting. Examples of

programmes include including feature-length

films, videos of short duration, sports events,

situation comedies, documentaries,

children’s programmes and original drama;

(ba) “user-generated video” means a set of

moving images with or without sound

constituting an individual item that is created

and/or uploaded to a video-sharing platform

by one or more users;

(c) ‘editorial responsibility’ means the

exercise of effective control both over the

selection of the programmes and over their

organisation either in a chronological


schedule, in the case of television

broadcasts, or in a catalogue, in the case of

on-demand audiovisual media services.

Editorial responsibility does not necessarily

imply any legal liability under national law for

the content or the services provided;

(d) ‘media service provider’ means the

natural or legal person who has editorial

responsibility for the choice of the

audiovisual content of the audiovisual media

service and determines the manner in which

it is organised;

(da) “video-sharing platform provider” means

the natural or legal person who provides a

“video-sharing platform service;

(e) ‘television broadcasting’ or ‘television

broadcast’ (i.e. a linear audiovisual media

service) means an audiovisual media service

provided by a media service provider for

simultaneous viewing of programmes on the

basis of a programme schedule;

(f) ‘broadcaster’ means a media service

provider of television broadcasts;

(g) ‘on-demand audiovisual media service’

(i.e. a non-linear audiovisual media service)

means an audiovisual media service

provided by a media service provider for the

viewing of programmes at the moment

chosen by the user and at his individual

request on the basis of a catalogue of

programmes selected by the media service

provider;

(h) ‘audiovisual commercial communication’

means images with or without sound which

are designed to promote, directly or

indirectly, the goods, services or image of a

natural or legal entity pursuing an economic

activity. Such images accompany or are

included in a programme in return for

payment or for similar consideration or for

self-promotional purposes. Forms of

audiovisual commercial communication

include, inter alia, television advertising,

sponsorship, teleshopping and product


placement;

(i) ‘television advertising’ means any form of

announcement broadcast whether in return

for payment or for similar consideration or

broadcast for self-promotional purposes by a

public or private undertaking or natural

person in connection with a trade, business,

craft or profession in order to promote the

supply of goods or services, including

immovable property, rights and obligations,

in return for payment;

(j) ‘surreptitious audiovisual commercial

communication’ means the representation in

words or pictures of goods, services, the

name, the trade mark or the activities of a

producer of goods or a provider of services in

programmes when such representation is

intended by the media service provider to

serve as advertising and might mislead the

public as to its nature. Such representation

shall, in particular, be considered as

intentional if it is done in return for payment

or for similar consideration;

(k) ‘sponsorship’ means any contribution

made by public or private undertakings or

natural persons not engaged in providing

audiovisual media services or in the

production of audiovisual works, to the

financing of audiovisual media services or

programmes with a view to promoting their

name, trade mark, image, activities or

products;

(l) ‘teleshopping’ means direct offers

broadcast to the public with a view to the

supply of goods or services, including

immovable property, rights and obligations,

in return for payment;

(m) ‘product placement’ means any form of

audiovisual commercial communication

consisting of the inclusion of or reference to

a product, a service or the trade mark thereof

so that it is featured within a programme, in

return for payment or for similar

consideration;


(n) ‘European works’ means the following:

(i) works originating in Member States;

(ii) works originating in European third

States party to the European

Convention on Transfrontier

Television of the Council of Europe

and fulfilling the conditions of

paragraph 3;

(iii) works co-produced within the

framework of agreements related to

the audiovisual sector concluded

between the Union and third

countries and fulfilling the conditions

defined in each of those agreements.

2. The application of the provisions of points

(n)(ii) and (iii) of paragraph 1 shall be

conditional on works originating in Member

States not being the subject of discriminatory

measures in the third country concerned.

3. The works referred to in points (n)(i) and

(ii) of paragraph 1 are works mainly made

with authors and workers residing in one or

more of the States referred to in those

provisions provided that they comply with

one of the following three conditions:

(i) they are made by one or more

producers established in one or more

of those States;

(ii) the production of the works is

supervised and actually controlled by

one or more producers established in

one or more of those States;

(iii) the contribution of co-producers of

those States to the total co-

production costs is preponderant and

the co-production is not controlled by

one or more producers established

outside those States.

4. Works that are not European works within

the meaning of point (n) of paragraph 1 but

that are produced within the framework of

bilateral co-production agreements

concluded between Member States and third

countries shall be deemed to be European

works provided that the co-producers from


the Union supply a majority share of the total

cost of production and that the production is

not controlled by one or more producers

established outside the territory of the

Member States.

CHAPTER II

GENERAL PROVISIONS

CHAPTER II

GENERAL PROVISIONS

GENERAL PROVISIONS FOR

AUDIOVISUAL MEDIA SERVICES

Art. 2 AVMSD

Art. 2 COM proposal

1. Each Member State shall ensure that all

audiovisual media services transmitted by

media service providers under its jurisdiction

comply with the rules of the system of law

applicable to audiovisual media services

intended for the public in that Member State.

2. For the purposes of this Directive, the

media service providers under the jurisdiction

of a Member State are any of the following:

(a) those established in that Member State in

accordance with paragraph 3;

(b) those to whom paragraph 4 applies.

3. For the purposes of this Directive, a media

service provider shall be deemed to be

established in a Member State in the

following cases:

(a) the media service provider has its head

office in that Member State and the editorial

decisions about the audiovisual media

service are taken in that Member State;


(b) if a media service provider has its head

office in one Member State but editorial

decisions on the audiovisual media service

are taken in another Member State, it shall

be deemed to be established in the Member

State where a significant part of the

workforce involved in the pursuit of the

audiovisual media service activity operates.

If a significant part of the workforce involved

in the pursuit of the audiovisual media

service activity operates in each of those

Member States, the media service provider

shall be deemed to be established in the

Member State where it has its head office.



service activity operates in neither of those



Member State where it first began its activity

in accordance with the law of that Member

State, provided that it maintains a stable and

effective link with the economy of that

Member State;

(b) if a media service provider has its head

office in one Member State but editorial

decisions on the audiovisual media service

are taken in another Member State, it shall

be deemed to be established in the Member

State where a significant part the majority of

the workforce involved in the pursuit of the

audiovisual media service activity operates.



service activity operates in each of those



Member State where it has its head office.



service activity operates in neither of those



Member State where it first began its activity

in accordance with the law of that Member

State, provided that it maintains a stable and

effective link with the economy of that

Member State;

(c) if a media service provider has its head

office in a Member State but decisions on the

audiovisual media service are taken in a third

country, or vice versa, it shall be deemed to

be established in the Member State

concerned, provided that a significant part of

the workforce involved in the pursuit of the

audiovisual media service activity operates in

that Member State.

4. Media service providers to whom the

provisions of paragraph 3 are not applicable

shall be deemed to be under the jurisdiction

of a Member State in the following cases:

(a) they use a satellite up-link situated in that

Member State;

(b) although they do not use a satellite up-

link situated in that Member State, they use

satellite capacity appertaining to that

Member State.


5. If the question as to which Member State

has jurisdiction cannot be determined in

accordance with paragraphs 3 and 4, the

competent Member State shall be that in

which the media service provider is

established within the meaning of Articles 49

to 55 of the Treaty on the Functioning of the

European Union.

5a. Member States shall communicate to the

Commission a list of the audiovisual media

service providers under their jurisdiction and

the criteria set out in paragraphs 2 to 5 on

which their jurisdiction is based. They shall

subsequently inform the Commission without

undue delay of any changes to that list. The

Commission shall ensure that the competent

independent regulatory authorities have

access to this information.

5b. Where, in applying Articles 3 and 4 of this

Directive, the Member States concerned do

not agree on which Member State has

jurisdiction, they shall bring the matter to the

Commission's attention without undue delay.

The Commission may request the European

Regulators Group for Audiovisual Media

Services (ERGA) to provide an opinion on

the matter within 15 working days from

submission of the Commission's request. If

the Commission requests an opinion from

ERGA, the time-limits set out in Articles 3(5)

and 4(5) shall be suspended until ERGA has

adopted an opinion.

6. This Directive does not apply to

audiovisual media services intended

exclusively for reception in third countries

and which are not received with standard

consumer equipment directly or indirectly by

the public in one or more Member States.


Art. 3 AVMSD

Art. 3 COM proposal

1. Member States shall ensure freedom of

reception and shall not restrict

retransmissions on their territory of

audiovisual media services from other

Member States for reasons which fall within

the fields coordinated by this Directive.

2. In respect of television broadcasting,

Member States may provisionally derogate

from paragraph 1 if the following conditions

are fulfilled:

2. In respect of television broadcasting,

Member States may provisionally derogate

from paragraph 1 if the following conditions

are fulfilled if an audiovisual media service

provided by a media service provider under

the jurisdiction of another Member State:

(a) a television broadcast coming from

another Member State manifestly, seriously

and gravely infringes Article 27(1) or (2)

and/or Article 6;

(a) a television broadcast coming from

another Member State manifestly, seriously

and gravely infringes Article 27(1) or (2)

and/or Article 6; Articles 6 or 12, or both;

(b) during the previous 12 months, the

broadcaster has infringed the provision(s)

referred to in point (a) on at least two prior

occasions;

(b) during the previous 12 months, the

broadcaster has infringed the provision(s)

referred to in point (a) on at least two prior

occasions; prejudices or presents a serious

and grave risk of prejudice to public security,

including the safeguarding of national

security and defence; or

(c) the Member State concerned has notified

the broadcaster and the Commission in

writing of the alleged infringements and of

the measures it intends to take should any

such infringement occur again;

(c) the Member State concerned has notified

the broadcaster and the Commission in

writing of the alleged infringements and of

the measures it intends to take should any

such infringement occur again; prejudices or

presents a serious and grave risk of

prejudice to public health.


(d) consultations with the transmitting

Member State and the Commission have not

produced an amicable settlement within 15

days of the notification provided for in point

(c), and the alleged infringement persists.

The Commission shall, within 2 months

following notification of the measures taken

by the Member State, take a decision on

whether the measures are compatible with

Union law. If it decides that they are not, the

Member State will be required to put an end

to the measures in question as a matter of

urgency.

(d) consultations with the transmitting

Member State and the Commission have not

produced an amicable settlement within 15

days of the notification provided for in point

(c), and the alleged infringement persists.

The Commission shall, within 2 months

following notification of the measures taken

by the Member State, take a decision on

whether the measures are compatible with

Union law. If it decides that they are not, the

Member State will be required to put an end

to the measures in question as a matter of

urgency.

3. Paragraph 2 shall be without prejudice to

the application of any procedure, remedy or

sanction to the infringements in question in

the Member State which has jurisdiction over

the broadcaster concerned.

3. Paragraph 2 shall be without prejudice to

the application of any procedure, remedy or

sanction to the infringements in question in

the Member State which has jurisdiction over

the broadcaster concerned.

Member States may only apply paragraph 2

where the following conditions are met:

(a) during the 12 months preceding the

notification referred to in point (b) of this

paragraph, the media service provider has, in

the opinion of the Member State concerned,

contravened point (a), (b) or (c) of paragraph

2 on at least two occasions;

(b) the Member State concerned has notified

the media service provider, the Member

State which has jurisdiction over the provider

and the Commission in writing of the alleged

contraventions and of the measures it

intends to take should any such alleged

contraventions occur again;

(c) consultations with the Member State

which has jurisdiction over the provider and

the Commission have not produced an

amicable settlement within one month of the

notification provided for in point (b);

(d) the media services provider has

contravened point (a), (b) or (c) of paragraph

2 at least once after the notification provided

for in point (b) of this paragraph;

(e) the notifying Member State has respected

the rights of defence of the media services

provider concerned and, in particular, has


given the media services provider the

opportunity to express its views on the

alleged contraventions and the measures

that that Member State intends to take. It

shall duly take into account those views as

well as the views of the Member State of

jurisdiction.

Points (a) and (d) of paragraph 3 shall apply

only in respect of linear services.

4. In respect of on-demand audiovisual

media services, Member States may take

measures to derogate from paragraph 1 in

respect of a given service if the following

conditions are fulfilled:

(a) the measures are:

(i) necessary for one of the following

reasons:

- public policy, in particular the

prevention, investigation,

detection and prosecution of

criminal offences, including the

protection of minors and the fight

against any incitement to hatred

on grounds of race, sex, religion

or nationality, and violations of

human dignity concerning

individual persons,

- the protection of public health,

- public security, including the

safeguarding of national security

and defence,

- the protection of consumers,

including investors;

(ii) taken against an on-demand

audiovisual media service which

prejudices the objectives referred to

in point (i) or which presents a serious

and grave risk of prejudice to those

objectives;

(iii) proportionate to those objectives;

(b) before taking the measures in question

and without prejudice to court proceedings,

including preliminary proceedings and acts

carried out in the framework of a criminal

4. In respect of on-demand audiovisual

media services, Member States may take

measures to derogate from paragraph 1 in

respect of a given service if the following

conditions are fulfilled:

(a) the measures are:

(i) necessary for one of the following

reasons:

- public policy, in particular the

prevention, investigation,

detection and prosecution of

criminal offences, including the

protection of minors and the fight

against any incitement to hatred

on grounds of race, sex, religion

or nationality, and violations of

human dignity concerning

individual persons,

- the protection of public health,

- public security, including the

safeguarding of national security

and defence,

- the protection of consumers,

including investors;

(ii) taken against an on-demand

audiovisual media service which

prejudices the objectives referred to

in point (i) or which presents a serious

and grave risk of prejudice to those

objectives;

(iii) proportionate to those objectives;

(b) before taking the measures in question

and without prejudice to court proceedings,

including preliminary proceedings and acts

carried out in the framework of a criminal


investigation, the Member State has:

(i) asked the Member State under

whose jurisdiction the media service

provider falls to take measures and

the latter did not take such measures,

or they were inadequate;

(ii) notified the Commission and the

Member State under whose

jurisdiction the media service provider

falls of its intention to take such

measures.

investigation, the Member State has:

(i) asked the Member State under

whose jurisdiction the media service

provider falls to take measures and

the latter did not take such measures,

or they were inadequate;

(ii) notified the Commission and the

Member State under whose

jurisdiction the media service provider

falls of its intention to take such

measures.

The Commission shall, within three months

following the notification of the measures

taken by the Member State in application of

paragraphs 2 and 3 and after having

consulted ERGA, take a decision on whether

those measures are compatible with Union

law. That period shall begin on the day

following the receipt of a complete

notification. The notification shall be

considered as complete if, within three

months from its receipt, or from the receipt of

any additional information requested, the

Commission does not request any further

information.

Where the Commission considers the

notification as incomplete, it shall request all

necessary additional information. The

Commission shall inform the Member State

of the receipt of the response to that request.

Where the Member State concerned does

not provide the information requested within

the period fixed by the Commission or where

it provides incomplete information, the

Commission shall take a decision that the

measures taken by the Member State in

accordance with paragraph 2 are

incompatible with Union law. If the

Commission decides that the measures are

incompatible with Union law, the Member

State shall put an end to the measures in

question as a matter of urgency.


5. Member States may, in urgent cases,

derogate from the conditions laid down in

point (b) of paragraph 4. Where this is the

case, the measures shall be notified in the

shortest possible time to the Commission

and to the Member State under whose

jurisdiction the media service provider falls,

indicating the reasons for which the Member

State considers that there is urgency.

5. Member States may, in urgent cases,

derogate from the conditions laid down in

point (b) of paragraph 4. Where this is the

case, the measures shall be notified in the

shortest possible time to the Commission

and to the Member State under whose

jurisdiction the media service provider falls,

indicating the reasons for which the Member

State considers that there is urgency. Paragraphs 3 and 4 shall be without

prejudice to the application of any procedure,

remedy or sanction to the contraventions in

question in the Member State which has

jurisdiction over the media service provider

concerned.

6. Without prejudice to the Member State’s

possibility of proceeding with the measures

referred to in paragraphs 4 and 5, the

Commission shall examine the compatibility

of the notified measures with Union law in

the shortest possible time. Where it comes to

the conclusion that the measures are

incompatible with Union law, the Commission

shall ask the Member State in question to

refrain from taking any proposed measures

or urgently to put an end to the measures in

question.



referred to in paragraphs 4 and 5, the

Commission shall examine the compatibility

of the notified measures with Union law in

the shortest possible time. Where it comes to

the conclusion that the measures are


shall ask the Member State in question to

refrain from taking any proposed measures

or urgently to put an end to the measures in

question. Member States may, in urgent

cases, derogate from the conditions laid

down in points (b) and (c) of paragraph 3.

Where this is the case, the measures shall

be notified in the shortest possible time to the

Commission and to the Member State which

has jurisdiction over the media service

provider, setting out the reasons for which

the Member State considers that there is

such urgency that derogating from those

conditions is necessary.



referred to in paragraph 6, the Commission

shall examine the compatibility of the notified

measures with Union law in the shortest

possible time. Where it comes to the

conclusion that the measures are


shall require the Member State concerned to

refrain from taking any intended measures or


urgently to put an end to those measures.

8. Member States and the Commission shall

regularly exchange experiences and best

practices regarding the procedure set out in

paragraphs 2 to 7 in the framework of the

contact committee established pursuant to

Article 29 and ERGA.

Art. 4 AVMSD

Art. 4 COM proposal

1. Member States shall remain free to require

media service providers under their

jurisdiction to comply with more detailed or

stricter rules in the fields coordinated by this

Directive provided that such rules are in

compliance with Union law.

1. Member States shall remain free to require


jurisdiction to comply with more detailed or

stricter rules with regard to Articles 5, 6, 6a,

9, 10, 11, 12, 13, 16, 17, 19 to 26, 30 and

30a, in the fields coordinated by this Directive

provided that such rules are in compliance

with Union law.

2. In cases where a Member State:

(a) has exercised its freedom under

paragraph 1 to adopt more detailed or stricter

rules of general public interest; and

(b) assesses that a broadcaster under the

jurisdiction of another Member State

provides a television broadcast which is

wholly or mostly directed towards its territory;

it may contact the Member State having

jurisdiction with a view to achieving a

mutually satisfactory solution to any

problems posed. On receipt of a

substantiated request by the first Member

State, the Member State having jurisdiction

shall request the broadcaster to comply with

the rules of general public interest in

question. The Member State having

jurisdiction shall inform the first Member

State of the results obtained following this

request within 2 months. Either Member

State may invite the contact committee

established pursuant to Article 29 to examine

the case.


3. The first Member State may adopt

appropriate measures against the

broadcaster concerned where it assesses

that:

(a) the results achieved through the

application of paragraph 2 are not

satisfactory; and

3. The first Member State may adopt

appropriate measures against the

broadcaster concerned where it assesses

that:

(a) the results achieved through the

application of paragraph 2 are not

satisfactory; and

(b) the broadcaster in question has

established itself in the Member State having

jurisdiction in order to circumvent the stricter

rules, in the fields coordinated by this

Directive, which would be applicable to it if it

were established in the first Member State.

Such measures shall be objectively

necessary, applied in a non-discriminatory

manner and proportionate to the objectives

which they pursue.

(b) the broadcaster in question has

established itself in the Member State having

jurisdiction in order to circumvent the stricter

rules, in the fields coordinated by this

Directive, which would be applicable to it if it

were established in the first Member State.

Such measures shall be objectively

necessary, applied in a non-discriminatory

manner and proportionate to the objectives

which they pursue.

The Member State which took steps in

accordance with points (a) and (b) of

paragraph 2 should substantiate the grounds

on which it bases its assessment of the

alleged circumvention.

4. A Member State may take measures

pursuant to paragraph 3 only if the following

conditions are met:

(a) it has notified the Commission and the

Member State in which the broadcaster is

established of its intention to take such

measures while substantiating the grounds

on which it bases its assessment; and

4. A Member State may take measures

pursuant to paragraph 3 only if where the

following conditions are met:

(a) it has notified the Commission and the

Member State in which the broadcaster is

established of its intention to take such

measures while substantiating the grounds

on which it bases its assessment; and

(b) the Commission has decided that the

measures are compatible with Union law,

and in particular that assessments made by

the Member State taking those measures

under paragraphs 2 and 3 are correctly

founded.

(b) the Commission has decided that the

measures are compatible with Union law,

and in particular that assessments made by

the Member State taking those measures

under paragraphs 2 and 3 are correctly

founded. it has respected the rights of

defence of the broadcaster concerned and, in

particular, has given the broadcaster the

opportunity to express its views on the

alleged circumvention and the measures the

notifying Member States intends to take;

(c) the Commission has decided, after having

consulted ERGA, that the measures are

compatible with Union law, in particular that


assessments made by the Member State

taking those measures under paragraphs 2

and 3 are correctly founded.

5. The Commission shall decide within 3

months following the notification provided for

in point (a) of paragraph 4. If the Commission

decides that the measures are incompatible

with Union law, the Member State in question

shall refrain from taking the proposed

measures.

5. The Commission shall decide within 3

months following the notification provided for

in point (a) of paragraph 4. That period shall

begin on the day following the receipt of a

complete notification. The notification will be

considered as complete if, within 3 months

from its receipt, or from the receipt of any

additional information requested, the

Commission does not request any further

information.

Where the Commission considers the

notification as incomplete, it shall request all

necessary additional information. The

Commission shall inform the Member State

of the receipt of the response to that request.

Where the Member State concerned does

not provide the information requested within

the period fixed by the Commission or

provides incomplete information, the

Commission shall take a decision that the

measures taken by the Member State in

accordance with paragraph 3 are

incompatible with Union law. If the

Commission decides that the measures are

incompatible with Union law, the Member

State in question shall refrain from taking the

intended measures.

6. Member States shall, by appropriate

means, ensure, within the framework of their

legislation, that media service providers

under their jurisdiction effectively comply with

the provisions of this Directive.


7. Member States shall encourage co-

regulation and/or self-regulatory regimes at

national level in the fields coordinated by this

Directive to the extent permitted by their legal

systems. These regimes shall be such that

they are broadly accepted by the main

stakeholders in the Member States

concerned and provide for effective

enforcement.

7. Member States shall encourage co-

regulation and/or self- -regulatory regimes

regulation through codes of conduct adopted

at national level in the fields coordinated by

this Directive to the extent permitted by their

legal systems. These regimes Those codes

shall be such that they are broadly accepted

by the main stakeholders in the Member

States concerned. The codes of conduct

shall clearly and unambiguously set out their

objectives. They shall provide for regular,

transparent and independent monitoring and

evaluation of the achievement of the

objectives aimed at. They shall provide for

effective enforcement, including when

appropriate effective and proportionate

sanctions.

Draft Union codes of conduct referred to in

Articles 6a (3), 9(2) and 9(4) and

amendments or extensions to existing Union

codes of conduct shall be submitted to the

Commission by the signatories of these

codes.

The Commission may ask ERGA to give an

opinion on the drafts, amendments or

extensions of those codes. The Commission

may publish those codes as appropriate.

8. Directive 2000/31/EC shall apply unless

otherwise provided for in this Directive. In the

event of a conflict between a provision of

Directive 2000/31/EC and a provision of this

Directive, the provisions of this Directive shall

prevail, unless otherwise provided for in this

Directive.


CHAPTER III

PROVISIONS APPLICABLE TO ALL


CHAPTER III

PROVISIONS APPLICABLE TO ALL


Art. 5 AVMSD

Art. 5 COM proposal

Member States shall ensure that audiovisual


jurisdiction shall make easily, directly and

permanently accessible to the recipients of a

service at least the following information:

(a) the name of the media service provider;

(b) the geographical address at which the

media service provider is established;

(c) the details of the media service provider,

including its electronic mail address or

website, which allow it to be contacted

rapidly in a direct and effective manner;

(d) where applicable, the competent

regulatory or supervisory bodies.

(d) where applicable, the competent

regulatory or supervisory bodies.

the Member State having jurisdiction over the

media service providers and the competent

regulatory authorities or supervisory bodies.

Art. 6 AVMSD

Art. 6 COM proposal

Member States shall ensure by appropriate

means that audiovisual media services

provided by media service providers under

their jurisdiction do not contain any

incitement to hatred based on race, sex,

religion or nationality.

Member States shall ensure by appropriate

means that audiovisual media services


their jurisdiction do not contain any

incitement to hatred based on race, sex,

religion or nationality. to violence or hatred

directed against a group of persons or a

member of such a group defined by

reference to sex, racial or ethnic origin,

religion or belief, disability, age or sexual

orientation.


Art. 6a COM proposal

1. Member States shall ensure that

audiovisual media services providers provide

sufficient information to viewers about

content which may impair the physical,

mental or moral development of minors. For

this purpose, Member States may use a

system of descriptors indicating the nature of

the content of an audiovisual media service.

2. For the implementation of this Article,

Member States shall encourage co-

regulation.

3. The Commission and ERGA shall

encourage media service providers to

exchange best practices on co-regulatory

systems across the Union. Where

appropriate, the Commission shall facilitate

the development of Union codes of conduct.

Art. 7 AVMSD

Art. 7 COM proposal

Member States shall encourage media

service providers under their jurisdiction to

ensure that their services are gradually

made accessible to people with a visual or

hearing disability.

deleted

Art. 8 AVMSD

Art. 8 COM proposal

Member States shall ensure that media

service providers under their jurisdiction do

not transmit cinematographic works outside

periods agreed with the rights holders.

Art. 9 AVMSD

Art. 9 COM proposal



audiovisual commercial communications


their jurisdiction comply with the following

requirements:

(a) audiovisual commercial communications

shall be readily recognisable as such.

Surreptitious audiovisual commercial

communication shall be prohibited;

(b) audiovisual commercial communications

shall not use subliminal techniques;

(c) audiovisual commercial communications

shall not:

(i) prejudice respect for human dignity;

(ii) include or promote any discrimination

based on sex, racial or ethnic origin,

nationality, religion or belief, disability,

age or sexual orientation;

(iii) encourage behaviour prejudicial to

health or safety;

(iv) encourage behaviour grossly

prejudicial to the protection of the

environment;

(d) all forms of audiovisual commercial

communications for cigarettes and other

tobacco products shall be prohibited;

(e) audiovisual commercial communications

for alcoholic beverages shall not be aimed

specifically at minors and shall not

encourage immoderate consumption of such

beverages;

(f) audiovisual commercial communication for

medicinal products and medical treatment

available only on prescription in the Member

State within whose jurisdiction the media

service provider falls shall be prohibited;

(g) audiovisual commercial communications

shall not cause physical or moral detriment to

minors. Therefore they shall not directly

exhort minors to buy or hire a product or

service by exploiting their inexperience or

credulity, directly encourage them to

persuade their parents or others to purchase

the goods or services being advertised,

exploit the special trust minors place in


parents, teachers or other persons, or

unreasonably show minors in dangerous

situations.



develop codes of conduct regarding

inappropriate audiovisual commercial

communications, accompanying or included

in children’s programmes, of foods and

beverages containing nutrients and

substances with a nutritional or physiological

effect, in particular those such as fat, trans-

fatty acids, salt/sodium and sugars,

excessive intakes of which in the overall diet

are not recommended.



develop the development of self- and co

regulatory codes of conduct regarding


communications, accompanying or included

in children’s programmes in programmes

with a significant children’s audience, of

foods and beverages containing nutrients

and substances with a nutritional or

physiological effect, excessive intakes of

which in the overall diet are not

recommended, in particular those such as

fat, trans-fatty acids, salt/sodium and sugars,

excessive intakes of which in the overall diet

are not recommended or sodium and sugar.

Those codes should be used to effectively

reduce the exposure of minors to audiovisual

commercial communications of foods and

beverages that are high in salt, sugars or fat

or that otherwise do not fit national or

international nutritional guidelines. Those

codes should provide that the audiovisual

commercial communications are not to

emphasise the positive quality of the

nutritional aspects of such foods and

beverages.

The Commission and ERGA shall encourage

the exchange of best practices on self- and

co-regulatory systems across the Union.

Where appropriate, the Commission shall

facilitate the development of Union codes of

conduct.


encourage the development of self- and co-

regulatory codes of conduct regarding


communications for alcoholic beverages.

Those codes should be used to effectively

limit the exposure of minors to audiovisual

commercial communications for alcoholic

beverages.


encourage the exchange of best practices on


self- and co-regulatory systems across the

Union. If considered appropriate, the

Commission shall facilitate the development

of Union codes of conduct.

Art. 10 AVMSD

Art. 10 COM proposal

1. Audiovisual media services or

programmes that are sponsored shall meet

the following requirements:

(a) their content and, in the case of television

broadcasting, their scheduling shall in no

circumstances be influenced in such a way

as to affect the responsibility and editorial

independence of the media service provider;

(b) they shall not directly encourage the

purchase or rental of goods or services, in

particular by making special promotional

references to those goods or services;


purchase or rental of goods or services in



(c) viewers shall be clearly informed of the

existence of a sponsorship agreement.

Sponsored programmes shall be clearly

identified as such by the name, logo and/or

any other symbol of the sponsor such as a

reference to its product(s) or service(s) or a

distinctive sign thereof in an appropriate way

for programmes at the beginning, during

and/or at the end of the programmes.

2. Audiovisual media services or

programmes shall not be sponsored by

undertakings whose principal activity is the

manufacture or sale of cigarettes and other

tobacco products.

3. The sponsorship of audiovisual media

services or programmes by undertakings

whose activities include the manufacture or

sale of medicinal products and medical

treatment may promote the name or the

image of the undertaking, but shall not

promote specific medicinal products or

medical treatments available only on

prescription in the Member State within

whose jurisdiction the media service provider


falls.

4. News and current affairs programmes shall

not be sponsored. Member States may

choose to prohibit the showing of a

sponsorship logo during children’s

programmes, documentaries and religious

programmes.

Art. 11 AVMSD


1. Paragraphs 2, 3 and 4 shall apply only to

programmes produced after 19 December

2009.

2. Product placement shall be prohibited.

2. Product placement shall be prohibited.

Product placement shall be admissible in all

audiovisual media services, except in news

and current affairs programmes, consumer

affairs programmes, religious programmes

and programmes with a significant children's

audience.

3. By way of derogation from paragraph 2,

product placement shall be admissible in the

following cases unless a Member State

decides otherwise:

3. By way of derogation from paragraph 2,

product placement shall be admissible in the

following cases unless a Member State

decides otherwise:

Programmes that contain product placement

shall meet the following requirements:

(a) in cinematographic works, films and

series made for audiovisual media services,

sports programmes and light entertainment

programmes;

(a) in cinematographic works, films and

series made for audiovisual media services,

sports programmes and light entertainment

programmes;

their content and, in the case of television





(b) where there is no payment but only the

provision of certain goods or services free of

charge, such as production props and prizes,

with a view to their inclusion in a programme.

The derogation provided for in point (a) shall

not apply to children’s programmes.

(b) where there is no payment but only the

provision of certain goods or services free of

charge, such as production props and prizes,

with a view to their inclusion in a programme.

The derogation provided for in point (a) shall

not apply to children’s programmes.



shall meet at least all of the following

requirements:


shall meet at least all of the following

requirements:

they shall not directly encourage the

purchase or rental of goods or services;



















(c) they shall not give undue prominence to

the product in question;

(c) they shall not give undue prominence to

the product in question;


(d) viewers shall be clearly informed of the

existence of product placement.

Programmes containing product placement

shall be appropriately identified at the start

and the end of the programme, and when a

programme resumes after an advertising

break, in order to avoid any confusion on the

part of the viewer.

By way of exception, Member States may

choose to waive the requirements set out in

point (d) provided that the programme in

question has neither been produced nor

commissioned by the media service provider

itself or a company affiliated to the media

service provider.

4. In any event programmes shall not contain

product placement of:

(a) tobacco products or cigarettes or product

placement from undertakings whose principal

activity is the manufacture or sale of

cigarettes and other tobacco products;

(b) specific medicinal products or medical

treatments available only on prescription in

the Member State under whose jurisdiction

the media service provider falls.

(c) viewers shall be clearly informed of the

existence of product placement.

Programmes containing product placement

shall be appropriately identified at the start

and the end of the programme, and when a

programme resumes after an advertising

break, in order to avoid any confusion on the

part of the viewer.

By way of exception, Member States may

choose to waive the requirements set out in

point (d) (c) provided that the programme in

question concerned has neither been

produced nor commissioned by the media

service provider itself or a company affiliated

to the media service provider.

Art. 12 AVMSD


Member States shall take appropriate

measures to ensure that on-demand

audiovisual media services provided by


jurisdiction which might seriously impair the

physical, mental or moral development of

minors are only made available in such a

way as to ensure that minors will not

normally hear or see such on-demand

audiovisual media services.


measures to ensure that on-demand

audiovisual media services provided by


jurisdiction which might seriously

programmes provided by audiovisual media

service providers under their jurisdiction,

which may impair the physical, mental or

moral development of minors are only made

available in such a way as to ensure that

minors will not normally hear or see such on-

demand audiovisual media services them.

Such measures may include selecting the

time of the broadcast, age verification tools

or other technical measures. They shall be

proportionate to the potential harm of the


programme.

The most harmful content, such as

gratuitous violence and pornography, shall

be subject to the strictest measures, such as

encryption and effective parental controls.

CHAPTER IV

PROVISIONS APPLICABLE ONLY TO ON-

DEMAND AUDIOVISUAL MEDIA

SERVICES

Art. 13 AVMSD


1. Member States shall ensure that on-

demand audiovisual media services provided

by media service providers under their

jurisdiction promote, where practicable and

by appropriate means, the production of and

access to European works.

1. Member States shall ensure that on-

demand audiovisual media services provided

by media service providers providers of on-

demand audiovisual media services under

their jurisdiction promote, where practicable

and by appropriate means, the production of

and access to European works. secure at

least a 20% share of European works in their

catalogue and ensure prominence of these

works.

Such promotion could relate, inter alia, to the

financial contribution made by such services

to the production and rights acquisition of

European works or to the share and/or

prominence of European works in the

catalogue of programmes offered by the on-

demand audiovisual media service.

Such promotion could relate, inter alia, to the

financial contribution made by such services

to the production and rights acquisition of

European works or to the share and/or

prominence of European works in the

catalogue of programmes offered by the on-

demand audiovisual media service.

2. Member States shall report to the

Commission no later than 19 December

2011 and every 4 years thereafter on the

implementation of paragraph 1.

2. Member States shall report to the

Commission no later than 19 December

2011 and every 4 years thereafter on the

implementation of paragraph 1.

Member States may require providers of on-

demand audiovisual media services under

their jurisdiction to contribute financially to

the production of European works, including

via direct investment in content and

contributions to national funds. Member


States may require providers of on-demand

audiovisual media services, targeting

audiences in their territories, but established

in other Member States to make such

financial contributions. In this case, the

financial contribution shall be based only on

the revenues earned in the targeted Member

States. If the Member State where the

provider is established imposes a financial

contribution, it shall take into account any

financial contributions imposed by targeted

Member States. Any financial contribution

shall comply with Union law, in particular with

State aid rules.

3. The Commission shall, on the basis of the

information provided by Member States and

of an independent study, report to the

European Parliament and to the Council on

the application of paragraph 1, taking into

account the market and technological

developments and the objective of cultural

diversity.





the application of paragraph 1, taking into

account the market and technological


diversity

Member States shall report to the

Commission by [date – no later than three

years after adoption] at the latest and every

two years thereafter on the implementation of

paragraphs 1 and 2.





the application of paragraphs 1 and 2, taking

into account the market and technological


diversity.

5. Member States shall waive the

requirements laid down in paragraphs 1 and

2 for providers with a low turnover or low

audience or if they are small and micro

enterprises. Member States may also waive

such requirements in cases where they

would be impracticable or unjustified by

reason of the nature or theme of the on-

demand audiovisual media services.


CHAPTER V

PROVISIONS CONCERNING EXCLUSIVE

RIGHTS AND SHORT NEWS REPORTS IN

TELEVISION BROADCASTING

Art. 14 AVMSD


1. Each Member State may take measures in

accordance with Union law to ensure that

broadcasters under its jurisdiction do not

broadcast on an exclusive basis events

which are regarded by that Member State as

being of major importance for society in such

a way as to deprive a substantial proportion

of the public in that Member State of the

possibility of following such events by live

coverage or deferred coverage on free

television. If it does so, the Member State

concerned shall draw up a list of designated

events, national or non-national, which it

considers to be of major importance for

society. It shall do so in a clear and

transparent manner in due time. In so doing

the Member State concerned shall also

determine whether these events should be

available by whole or partial live coverage or,

where necessary or appropriate for objective

reasons in the public interest, whole or partial

deferred coverage.

2. Member States shall immediately notify to

the Commission any measures taken or to

be taken pursuant to paragraph 1. Within a

period of 3 months from the notification, the

Commission shall verify that such measures

are compatible with Union law and

communicate them to the other Member

States. It shall seek the opinion of the

contact committee established pursuant to

Article 29. It shall forthwith publish the

measures taken in the Official Journal of the

European Union and at least once a year the

consolidated list of the measures taken by

Member States.

3. Member States shall ensure, by

appropriate means within the framework of


their legislation, that broadcasters under their

jurisdiction do not exercise the exclusive

rights purchased by those broadcasters after

18 December 2007 in such a way that a

substantial proportion of the public in another

Member State is deprived of the possibility of

following events which are designated by

that other Member State in accordance with

paragraphs 1 and 2 by whole or partial live

coverage or, where necessary or appropriate

for objective reasons in the public interest,

whole or partial deferred coverage on free

television as determined by that other

Member State in accordance with paragraph

1.

Art. 15 AVMSD


1. Member States shall ensure that for the

purpose of short news reports, any

broadcaster established in the Union has

access on a fair, reasonable and non-

discriminatory basis to events of high interest

to the public which are transmitted on an

exclusive basis by a broadcaster under their

jurisdiction.

2. If another broadcaster established in the

same Member State as the broadcaster

seeking access has acquired exclusive rights

to the event of high interest to the public,

access shall be sought from that

broadcaster.

3. Member States shall ensure that such

access is guaranteed by allowing

broadcasters to freely choose short extracts

from the transmitting broadcaster’s signal

with, unless impossible for reasons of

practicality, at least the identification of their

source.

4. As an alternative to paragraph 3, Member

States may establish an equivalent system

which achieves access on a fair, reasonable

and non-discriminatory basis through other

means.

5. Short extracts shall be used solely for


general news programmes and may be used

in on-demand audiovisual media services

only if the same programme is offered on a

deferred basis by the same media service

provider.

6. Without prejudice to paragraphs 1 to 5,

Member States shall ensure, in accordance

with their legal systems and practices, that

the modalities and conditions regarding the

provision of such short extracts are defined,

in particular, with respect to any

compensation arrangements, the maximum

length of short extracts and time limits

regarding their transmission. Where

compensation is provided for, it shall not

exceed the additional costs directly incurred

in providing access.

CHAPTER VI

PROMOTION OF DISTRIBUTION AND

PRODUCTION OF TELEVISION

PROGRAMMES

Art. 16 AVMSD


1. Member States shall ensure, where

practicable and by appropriate means, that

broadcasters reserve for European works a

majority proportion of their transmission time,

excluding the time allotted to news, sports

events, games, advertising, teletext services

and teleshopping.

This proportion, having regard to the

broadcaster’s informational, educational,

cultural and entertainment responsibilities to

its viewing public, should be achieved

progressively, on the basis of suitable

criteria.

2. Where the proportion laid down in

paragraph 1 cannot be attained, it must not

be lower than the average for 1988 in the


Art. 17 AVMSD


Member States shall ensure, where

practicable and by appropriate means, that

broadcasters reserve at least 10 % of their

transmission time, excluding the time allotted

to news, sports events, games, advertising,

teletext services and teleshopping, or

alternately, at the discretion of the Member

State, at least 10 % of their programming

budget, for European works created by

Member State concerned.

However, in respect of Greece and Portugal,

the year 1988 shall be replaced by the year

1990.

3. Member States shall provide the

Commission every 2 years, starting from 3

October 1991, with a report on the

application of this Article and Article 17.

That report shall in particular include a

statistical statement on the achievement of

the proportion referred to in this Article and

Article 17 for each of the television

programmes falling within the jurisdiction of

the Member State concerned, the reasons, in

each case, for the failure to attain that

proportion and the measures adopted or

envisaged in order to achieve it.

The Commission shall inform the other

Member States and the European Parliament

of the reports, which shall be accompanied,

where appropriate, by an opinion. The

Commission shall ensure the application of

this Article and Article 17 in accordance with

the provisions of the Treaty on the

Functioning of the European Union. The

Commission may take account in its opinion,

in particular, of progress achieved in relation

to previous years, the share of first broadcast

works in the programming, the particular

circumstances of new television

broadcasters and the specific situation of

countries with a low audiovisual production

capacity or restricted language area.


producers who are independent of

broadcasters. This proportion, having regard

to the broadcaster’s informational,

educational, cultural and entertainment

responsibilities to its viewing public, should

be achieved progressively, on the basis of

suitable criteria. It must be achieved by

earmarking an adequate proportion for

recent works, that is to say works

transmitted within 5 years of their production.

Art. 18 AVMSD


This Chapter shall not apply to television

broadcasts that are intended for local

audiences and do not form part of a national

network.

CHAPTER VII

TELEVISION ADVERTISING AND

TELESHOPPING

Art. 19 AVMSD


1. Television advertising and teleshopping

shall be readily recognisable and

distinguishable from editorial content. Without

prejudice to the use of new advertising

techniques, television advertising and

teleshopping shall be kept quite distinct from

other parts of the programme by optical

and/or acoustic and/or spatial means.

2. Isolated advertising and teleshopping

spots, other than in transmissions of sports

events, shall remain the exception.


Art. 20 AVMSD


1. Member States shall ensure, where

television advertising or teleshopping is

inserted during programmes, that the integrity

of the programmes, taking into account

natural breaks in and the duration and the

nature of the programme concerned, and the

rights of the right holders are not prejudiced.

2. The transmission of films made for

television (excluding series, serials and

documentaries), cinematographic works and

news programmes may be interrupted by

television advertising and/or teleshopping

once for each scheduled period of at least 30

minutes. The transmission of children’s

programmes may be interrupted by television

advertising and/or teleshopping once for

each scheduled period of at least 30 minutes,

provided that the scheduled duration of the

programme is greater than 30 minutes.

2. The transmission of films made for

television (excluding series, serials and

documentaries), cinematographic works and

news programmes may be interrupted by

television advertising and/or teleshopping

once for each scheduled period of at least 30

20 minutes. The transmission of children’s

programmes may be interrupted by television

advertising and/or teleshopping once for

each scheduled period of at least 30

minutes, provided that the scheduled

duration of the programme is greater than 30

minutes.

No television advertising or teleshopping

shall be inserted during religious services.

No television advertising or teleshopping

shall be inserted during religious services.

Art. 21 AVMSD


Teleshopping for medicinal products which

are subject to a marketing authorisation

within the meaning of Directive 2001/83/EC,

as well as teleshopping for medical

treatment, shall be prohibited.

Art. 22 AVMSD


Television advertising and teleshopping for

alcoholic beverages shall comply with the

following criteria:

(a) it may not be aimed specifically at minors


Art. 23 AVMSD


1. The proportion of television advertising

spots and teleshopping spots within a given

clock hour shall not exceed 20 %.

1. The daily proportion of television

advertising spots and teleshopping spots

within a given clock hour within the period

between 7:00 and 23:00 shall not exceed 20

%.

2. Paragraph 1 shall not apply to

announcements made by the broadcaster in

connection with its own programmes and

ancillary products directly derived from those

programmes, sponsorship announcements

and product placements.

2. Paragraph 1 shall not apply to

announcements made by the broadcaster in

connection with its own programmes and


programmes, sponsorship announcements

and product placements:

(a) announcements made by the broadcaster

in connection with its own programmes and


programmes or with programmes from other

entities belonging to the same media group;

(b) sponsorship announcements;

(c) product placements.

or, in particular, depict minors consuming

these beverages;

(b) it shall not link the consumption of

alcohol to enhanced physical performance or

to driving;

(c) it shall not create the impression that the

consumption of alcohol contributes towards

social or sexual success;

(d) it shall not claim that alcohol has

therapeutic qualities or that it is a stimulant,

a sedative or a means of resolving personal

conflicts;

(e) it shall not encourage immoderate

consumption of alcohol or present

abstinence or moderation in a negative light;

(f) it shall not place emphasis on high

alcoholic content as being a positive quality

of the beverages.


Art. 24 AVMSD


Teleshopping windows shall be clearly

identified as such by optical and acoustic

means and shall be of a minimum

uninterrupted duration of 15 minutes.

Art. 25 AVMSD


This Directive shall apply mutatis mutandis

to television channels exclusively devoted to

advertising and teleshopping as well as to

television channels exclusively devoted to

self-promotion.

However, Chapter VI as well as Articles 20

and 23 shall not apply to these channels.

Art. 26 AVMSD

Without prejudice to Article 4, Member

States may, with due regard for Union law,

lay down conditions other than those laid

down in Article 20(2) and Article 23 in

respect of television broadcasts intended

solely for the national territory which cannot

be received directly or indirectly by the public

in one or more other Member States.

CHAPTER VIII

PROTECTION OF MINORS IN

TELEVISION BROADCASTING

deleted

Art. 27 AVMSD


1. Member States shall take appropriate

measures to ensure that television

deleted


broadcasts by broadcasters under their

jurisdiction do not include any programmes

which might seriously impair the physical,

mental or moral development of minors, in

particular programmes that involve

pornography or gratuitous violence.

2. The measures provided for in paragraph 1

shall also extend to other programmes which

are likely to impair the physical, mental or

moral development of minors, except where

it is ensured, by selecting the time of the

broadcast or by any technical measure, that

minors in the area of transmission will not

normally hear or see such broadcasts.

3. In addition, when such programmes are

broadcast in unencoded form Member States

shall ensure that they are preceded by an

acoustic warning or are identified by the

presence of a visual symbol throughout their

duration.

CHAPTER IX

RIGHT OF REPLY IN TELEVISION

BROADCASTING

Art. 28 AVMSD


1. Without prejudice to other provisions

adopted by the Member States under civil,

administrative or criminal law, any natural or

legal person, regardless of nationality, whose

legitimate interests, in particular reputation

and good name, have been damaged by an

assertion of incorrect facts in a television

programme must have a right of reply or

equivalent remedies. Member States shall

ensure that the actual exercise of the right of

reply or equivalent remedies is not hindered

by the imposition of unreasonable terms or

conditions. The reply shall be transmitted

within a reasonable time subsequent to the

request being substantiated and at a time

and in a manner appropriate to the broadcast


to which the request refers.

2. A right of reply or equivalent remedies

shall exist in relation to all broadcasters

under the jurisdiction of a Member State.

3. Member States shall adopt the measures

needed to establish the right of reply or the

equivalent remedies and shall determine the

procedure to be followed for the exercise

thereof. In particular, they shall ensure that a

sufficient time span is allowed and that the

procedures are such that the right or

equivalent remedies can be exercised

appropriately by natural or legal persons

resident or established in other Member

States.

4. An application for exercise of the right of

reply or the equivalent remedies may be

rejected if such a reply is not justified

according to the conditions laid down in

paragraph 1, would involve a punishable act,

would render the broadcaster liable to civil-

law proceedings or would transgress

standards of public decency.

5. Provision shall be made for procedures

whereby disputes as to the exercise of the

right of reply or the equivalent remedies can

be subject to judicial review.

CHAPTER IXa

PROVISION APPLICABLE TO VIDEO-

SHARING PLATFORMS


1. Without prejudice to Articles 14 and 15 of

Directive 2000/31/EC, Member States shall

ensure that video-sharing platform providers

take appropriate measures to:

(a) protect minors from content which may

impair their physical, mental or moral


development;

(b) protect all citizens from content

containing incitement to violence or hatred

directed against a group of persons or a

member of such a group defined by

reference to sex, race, colour, religion,

descent or national or ethnic origin.

2. What constitutes an appropriate measure

for the purposes of paragraph 1 shall be

determined in light of the nature of the

content in question, the harm it may cause,

the characteristics of the category of persons

to be protected as well as the rights and

legitimate interests at stake, including those

of the video-sharing platform providers and

the users having created and/or uploaded

the content as well as the public interest.

Those measures shall consist of, as

appropriate:

(a) defining and applying in the terms and

conditions of the video-sharing platform

providers the concepts of incitement to

violence or hatred as referred to in point (b)

of paragraph 1 and of content which may

impair the physical, mental or moral

development of minors, in accordance with

Articles 6 and 12 respectively;

(b) establishing and operating mechanisms

for users of video-sharing platforms to report

or flag to the video-sharing platform provider

concerned the content referred to in

paragraph 1 stored on its platform;

(c) establishing and operating age

verification systems for users of video-

sharing platforms with respect to content

which may impair the physical, mental or

moral development of minors;

(d) establishing and operating systems

allowing users of video-sharing platforms to

rate the content referred to in paragraph 1;

(e) providing for parental control systems

with respect to content which may impair the

physical, mental or moral development of

minors;

(f) establishing and operating systems

through which providers of video-sharing


platforms explain to users of video-sharing

platforms what effect has been given to the

reporting and flagging referred to in point (b).

3. For the purposes of the implementation of

the measures referred to in paragraphs 1

and 2, Member States shall encourage co-

regulation as provided for in Article 4(7).

4. Member States shall establish the

necessary mechanisms to assess the

appropriateness of the measures referred to

in paragraphs 2 and 3 taken by video-sharing

platform providers. Member States shall

entrust this task to the authorities designated

in accordance with Article 30.

5. Member States shall not impose on video-

sharing platform providers measures that are

stricter than the measures referred to in

paragraph 1 and 2. Member States shall not

be precluded from imposing stricter

measures with respect to illegal content.

When adopting such measures, they shall

respect the conditions set by applicable

Union law, such as, where appropriate, those

set in Articles 14 and 15 of Directive

2000/31/EC or Article 25 of Directive

2011/93/EU.

6. Member States shall ensure that complaint

and redress mechanisms are available for

the settlement of disputes between users

and video-sharing platform providers relating

to the application of the appropriate

measures referred to in paragraphs 1 and 2.


encourage video-sharing platform providers

to exchange best practices on co-regulatory

systems across the Union. Where

appropriate, the Commission shall facilitate

the development of Union codes of conduct.

8. Video-sharing platform providers or, where

applicable, the organisations representing

those providers in this respect shall submit to

the Commission draft Union codes of

conduct and amendments to existing Union

codes of conduct. The Commission may

request ERGA to give an opinion on the

drafts, amendments or extensions of those

codes of conduct. The Commission may give


appropriate publicity to those codes of

conduct.

Art. 28b COM proposal

1. Member States shall ensure that video-

sharing platform providers which are not

established on their territory, but which have

either a parent company or a subsidiary that

is established on their territory or which are

part of a group and another entity of that

group is established on their territory, are

deemed to have been established on their

territory for the purposes of Article 3(1) of

Directive 2000/31/EEC.

For the purposes of applying the first

subparagraph, where the parent company,

the subsidiary or the other entity of the group

are each established in different Member

States, the provider shall be deemed to have

been established in the Member State where

its parent company is established or, in the

absence of such an establishment in a

Member State, where its subsidiary is

established or, in the absence of such an

establishment in a Member State, where the

other entity of the group is established.

For the purposes of applying the second

subparagraph, where there are several

subsidiaries each of which are established in

different Member States, or where there are

several other entities of the group each of

which are established in different Member

States, the Member States concerned shall

ensure that the provider designates in which

of these Member States it shall be deemed

to have been established.

2. Member States shall communicate to the

Commission a list of the video-sharing

platform providers established on their

territory and the criteria, set out in Article 3(1)

of Directive 2000/31/EC and in paragraph 1,

on which their jurisdiction is based. They

shall update the list regularly. The

Commission shall ensure that the competent


independent regulatory authorities have

access to this information.

CHAPTER X

CONTACT COMMITTEE

Art. 29 AVMSD


1. A contact committee is established under

the aegis of the Commission. It shall be

composed of representatives of the

competent authorities of the Member States.

It shall be chaired by a representative of the

Commission and meet either on his initiative

or at the request of the delegation of a

Member State.

2. The tasks of the contact committee shall

be:

(a) to facilitate effective implementation of

this Directive through regular consultation on

any practical problems arising from its

application, and particularly from the

application of Article 2, as well as on any

other matters on which exchanges of views

are deemed useful;

(b) to deliver own-initiative opinions or

opinions requested by the Commission on

the application by the Member States of this

Directive;

(c) to be the forum for an exchange of views

on what matters should be dealt with in the

reports which Member States must submit

pursuant to Article 16(3) and on their

methodology;

(d) to discuss the outcome of regular

consultations which the Commission holds

with representatives of broadcasting

organisations, producers, consumers,

manufacturers, service providers and trade

unions and the creative community;


(e) to facilitate the exchange of information

between the Member States and the

Commission on the situation and the

development of regulatory activities

regarding audiovisual media services, taking

account of the Union’s audiovisual policy, as

well as relevant developments in the

technical field;

(f) to examine any development arising in

the sector on which an exchange of views

appears useful.

CHAPTER XI

COOPERATION BETWEEN REGULATORY

BODIES OF THE MEMBER STATES

CHAPTER XI

COOPERATION BETWEEN REGULATORY

BODIES OF THE MEMBER STATES

REGULATORY AUTHORITIES OF THE

MEMBER STATES

Art. 30 AVMSD



measures to provide each other and the

Commission with the information necessary

for the application of this Directive, in

particular Articles 2, 3 and 4, in particular

through their competent independent

regulatory bodies.


measures to provide each other and the

Commission with the information necessary

for the application of this Directive, in

particular Articles 2, 3 and 4, in particular

through their competent independent

regulatory bodies.

1. Each Member State shall designate one or

more independent national regulatory

authorities. Member States shall ensure that

they are legally distinct and functionally

independent of any other public or private

body. This shall be without prejudice to the

possibility for Member States to set up

regulators having oversight over different

sectors.

2. Member States shall ensure that national

regulatory authorities exercise their powers

impartially and transparently and in

accordance with the objectives of this

Directive, in particular media pluralism,


cultural diversity, consumer protection,

internal market and the promotion of fair

competition.

National regulatory authorities shall not seek

or take instructions from any other body in

relation to the exercise of the tasks assigned

to them under national law implementing

Union law. This shall not prevent supervision

in accordance with national constitutional

law.

3. The competences and powers of the

independent regulatory authorities, as well as

the ways of making them accountable shall

be clearly defined in law.

4. Member States shall ensure that national

regulatory authorities have adequate

enforcement powers to carry out their

functions effectively.

5. The Head of a national regulatory authority

or the members of the collegiate body

fulfilling that function within a national

regulatory authority, may be dismissed only if

they no longer fulfil the conditions required

for the performance of their duties which are

laid down in advance in national law. A

dismissal decision shall be made public and

a statement of reasons shall be made

available.


independent national regulatory authorities

have separate annual budgets. The budgets

shall be made public. Member States shall

also ensure that national regulatory

authorities have adequate financial and

human resources to enable them to carry out

the task assigned to them and to actively

participate in and contribute to ERGA.

7. Member States shall ensure that effective

mechanisms exist at national level under

which any user or media services provider or

video-sharing platform provider who is

affected by a decision of a national

regulatory authority has the right of appeal

against the decision to an appeal body. The

appeal body shall be independent of the

parties involved in the appeal.


That appeal body, which should be a court,

shall have the appropriate expertise to

enable it to carry out its functions effectively.

Member States shall ensure that the merits

of the case are duly taken into account and

that there is an effective appeal mechanism.

Pending the outcome of the appeal, the

decision of the national regulatory authority

shall stand, unless interim measures are

granted in accordance with national law.


1. The European Regulators Group for

Audiovisual Media Services (ERGA) is

hereby established.

2. It shall be composed of national

independent regulatory authorities in the

field of audiovisual media services. They

shall be represented by the heads or by

nominated high level representatives of the

national regulatory authority with primary

responsibility for overseeing audiovisual

media services, or in cases where there is

no national regulatory authority, by other

representatives as chosen through their

procedures. A Commission representative

shall participate in the group meetings.

3. ERGA shall have the following tasks:

(a) to advise and assist the Commission in

its work to ensure a consistent

implementation in all Member States of the

regulatory framework for audiovisual media

services;

(b) to advise and assist the Commission as

to any matter related to audiovisual media

services within the Commission's

competence. If justified in order to advise the

Commission on certain issues, the group

may consult market participants, consumers

and end-users in order to collect the

necessary information;

(c) to provide for an exchange of experience

and good practice as to the application of the


regulatory framework for audiovisual media

services;

(d) to cooperate and provide its members

with the information necessary for the

application of this Directive, in particular as

regards Articles 3 and 4 thereof;

(e) to give opinions, when requested by the

Commission, on the issues envisaged in

Articles 2(5b), 6a(3), 9(2), 9(4) and on any

matter relating to audiovisual media

services, in particular on the protection of

minors and incitement to hatred.

4. The Commission shall be empowered to

adopt, by means of an implementing act, the

rules of procedure for ERGA.

CHAPTER XII

FINAL PROVISIONS

Art. 31 AVMSD


In fields which this Directive does not

coordinate, it shall not affect the rights and

obligations of Member States resulting from

existing conventions dealing with

telecommunications or broadcasting.

Art. 32 AVMSD


Member States shall communicate to the

Commission the text of the main provisions

of national law which they adopt in the field

covered by this Directive.


Art. 33 AVMSD Art. 33 COM proposal

Not later than 19 December 2011, and every

3 years thereafter, the Commission shall

submit to the European Parliament, to the

Council and to the European Economic and

Social Committee a report on the application

of this Directive and, if necessary, make

further proposals to adapt it to developments

in the field of audiovisual media services, in

particular in the light of recent technological

developments, the competitiveness of the

sector and levels of media literacy in all

Member States.

Not later than 19 December 2011, and every

3 years thereafter, the Commission shall

submit to the European Parliament, to the

Council and to the European Economic and

Social Committee a report on the application

of this Directive and, if necessary, make

further proposals to adapt it to developments

in the field of audiovisual media services, in

particular in the light of recent technological

developments, the competitiveness of the

sector and levels of media literacy in all

Member States.

That report shall also assess the issue of

television advertising accompanying or

included in children’s programmes, and in

particular whether the quantitative and

qualitative rules contained in this Directive

have afforded the level of protection

required.

That report shall also assess the issue of

television advertising accompanying or

included in children’s programmes, and in

particular whether the quantitative and

qualitative rules contained in this Directive

have afforded the level of protection

required.

The Commission shall monitor Member

States' application of the Directive, including

its application of co-regulation and self-

regulation through codes adopted at national

level.

By [date – no later than four years after

adoption] at the latest, and every three years

thereafter, the Commission shall submit to

the European Parliament, to the Council and

to the European Economic and Social

Committee a report on the application of this

Directive.

By [date - no later than 10 years after

adoption] at the latest, the Commission shall

submit to the European Parliament and the

Council an ex post evaluation, accompanied

where appropriate by proposals for its

review, in order to measure the impact of the

Directive and its added value.

Art. 34 AVMSD



Directive 89/552/EEC, as amended by the

Directives listed in Annex I, Part A, is

repealed, without prejudice to the obligations

of the Member States relating to the time

limits for trans position into national law of

the Directives set out in Annex I, Part B.

References to the repealed Directive shall

be construed as references to this Directive

and shall be read in accordance with the

correlation table in Annex II.

Art. 35 AVMSD


This Directive shall enter into force on the

20th day following its publication in the

Official Journal of the European Union.

Art. 36 AVMSD


This Directive is addressed to the Member

States.

the eu audiovisual media services directive and its ... · and its transposition into national law...

Documents